Terms and Conditions
The Contacts Plus Limited (NZ – 3565952) – trading as Contacts Plus is a wholly owned subsidiary of Data Zoo Limited (NZ – 3287828)
The Contacts Plus Data Agreement is between Contacts Plus Limited (NZ – 3565952) – trading as Contacts Plus (a wholly owned subsidiary of Data Zoo Limited (NZ – 3287828)) (“CP”) and the customer named on the order form (“Customer”). The term (“Term”) of this Agreement shall begin on the date on the Online Data Agreement and Order form. The terms and conditions set forth shall govern the use of data as requested (the “List(s)”) and supplied by CP.
- CP grants a non-transferable, non-exclusive licence, without the right to sublicense, to the Customer to use the Lists in New Zealand during the Term, on the terms and conditions set out in this Agreement. Customer acknowledges that the List(s) shall at all times remain the proprietary or copyrighted property of CP and the data owners who provided data contained within the Lists to CP, and that Customer has no proprietary rights in the List(s). Except for the Customer providing the Lists to Customer hereunder, the List(s) or any part thereof shall not be copied, disseminated, sublet, resold, or republished in any manner whatsoever. Furthermore, the List(s) shall not be used in the development of any service or product provided to third parties, including without limitation any file, direct marketing list, model, analysis, code, report or application which uses or is derived from the Lists.
- The List(s) provided hereunder shall be rented for either one-time use, two-time use or unlimited use for one (1) year as specified in the order form (“Order Form”) which shall be incorporated in and is subject to this Agreement. The List(s) is for the Customer’s own internal marketing programs and for no other purpose.
- Customer shall not use, manipulate or modify the Lists to create or facilitate the creation or use of a Reverse Telephone Directory; extract the data within the Lists; use the Lists or data therein in any application involving the Internet or as part of a CD-ROM; copy or duplicate the Lists other than for merge/purge processing and in such event, Customer shall destroy all copies immediately on completion of the processing; remove any product identification, copyright or proprietary notice from the Lists; use the data within the Lists to assist in verifying an individual’s identity, establish an individual’s creditworthiness, or eligibility for insurance or employment; and use the Lists to advertise products or services that relate to sex, pornographic materials, illegal drugs, weapons or illegal or illicit activities.
- All List(s) are seeded to detect any unauthorized use or duplication thereof, and Customer agrees not to remove seeds from its mailing list(s). If CP discovers unauthorized use or duplication by Customer, CP shall, among other things, invoice Customer for the full multiple use charge and be entitled to liquidated damages of treble the amount of this Agreement.
- All marketing communications used in connection with any marketing list created by or for Customer derived solely from the List(s) shall (i) not include a reference as to how the recipient was selected or how the recipient’s name and address were obtained; (ii) prominently display a notice that the recipient may elect not to receive further direct marketing communications from Customer (iii) set out Customer’s business address and telephone number or a number or address at which Customer can be contacted electronically if such opt-out communication is made by electronic means; and (iv) be in good taste in accordance with generally recognized standards of high integrity. CP will use the New Zealand Marketing Association’s (“NZMA”) Do Not Mail/Do Not Call registry and services to suppress files. However, CP does not guarantee that the NZMA registry or services are up-to-date or complete or that consents have been obtained for the use and disclosure of the information from all individuals to whom the data in the Lists relate. Customer must not use, publish or permit the use or publication of any telephone number or address which is tagged or which it knows or ought reasonably to know is a silent address or telephone number.
- Customer will respond to all consumer inquiries that it receives arising out of the use of the Lists. Customer will not refer to CP in any response unless it has confirmed that CP supplied the Data giving rise to the query. Any reference that Customer makes to CP will be in accordance with CP’s instructions to Customer. Customer will suppress an individual’s information on request by that individual so that it is removed from future marketing initiatives by Customer. Customer will notify CP of the request and any other consumer inquiry that involves the accuracy of the Lists or any part thereof.
- The List(s) shall be examined upon the delivery thereof and Customer shall notify CP in writing within 5 days of delivery of any questions or problems. No information shall be accepted after 5 days.
- Customer agrees to pay the fees as set forth on the Customer Online Data Agreement Order Form. Customer agrees that the fees are based upon estimated record counts, and invoiced charges are computed on the actual number of records. Prices will be adjusted and invoiced pursuant thereto. In addition to the fees set forth on an Order Form, any GST payable for any supply by CP under or, in connection with, this Agreement, without deduction or set-off must be paid to CP. I will make that payment as and when the cost, or other consideration or part of it, must be paid or provided. Customer agrees to pay all fees owed to CP regardless of whether Customer has received any payments owed to Customer by any third party.
- CP reserves the right to pre-approve and review the Customer’s intended use of the data, including, but not limited to, sample mail pieces, prior to CP’s acceptance of this order. Customer is responsible for all materials intended for mailing to names/addresses on the List(s) provided by CP, and further agrees to (i) keep copies of mail materials for a period of no less than six (6) months after any mail date and (ii) provide one (1) copy of such materials to CP upon request.
- CP shall not be responsible for, or incur any liability, as the result of delays or failures in the delivery of any List(s), in schedules or in performing any of the services described herein in the event of strikes, riots, civil commotion, act or failure to act of any governmental authority, delays in or failure to deliver any products or materials by the Australia Post or other public or private transport, equipment breakdown or failure, fires, floods, windstorm or any other act or occurrence beyond CP’s reasonable control.
- CP and the data owners make no warranties, express or implied, hereunder with respect to the List(s) or the media on which the List(s) is provided, including but not limited to warranties of accuracy, completeness, currentness, merchantability or fitness for a particular purpose. In no event shall any party or any data owner be liable for any special, indirect, incidental or consequential damages, whether or not foreseeable and however arising, including but not limited to lost income or lost revenue, whether based in contract, tort or any other theory. Any cause of action arising under this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later.
- To the extent permitted by law, CP’s sole obligation and Customer’s exclusive remedy for any claim of a defective List or any claim of defective services provided by CP or any of its related bodies corporate shall be to replace the defective List or re-perform the services in question without charge or, at Customer’s option, to refund the price paid by Customer for such defective List or service. CP’s aggregate liability to Customer whether for negligence, breach of warranty, or any other cause of action shall be limited to the price paid for the List(s) or the services to which the incident relates.
- Customer hereby releases and agrees to indemnify and hold harmless CP, its officers, customers and employees from any and all liabilities, damages, losses, expenses, demands, claims, suits or judgments, including all attorneys’ fees, costs and expenses arising from any and all unauthorized use by Customer or by any third party processor, including any service bureau acting on Customer’s behalf. To the extent permitted by law, CP shall not be responsible for any direct or indirect damages that may result from such unauthorized use of the List(s). Customer agrees to take all steps necessary to ensure that any third party processor shall use the List(s) as specifically authorized by CP.
- CP may terminate this Agreement and any active Order Forms: (i) immediately if I breach this agreement and fail to remedy the breach within 14 days of notice from CP; (ii) immediately on notice if a third party claims the Data infringes its intellectual property rights; (iii) immediately on notice if it receives legal advice that any part of this agreement contravenes privacy or data protection legislation; and on 30 days’ notice if its costs of complying with any law, in respect of the supply of the Data to me, exceed the fees stated in any active Order Form(s). Notwithstanding the foregoing, the terms and conditions of this Agreement shall remain in full force and effect as long as any Order Form is in effect. Upon termination of this Agreement and if requested by CP, Customer agrees to return all copies of the List(s) to CP or dispose of the List(s) in a manner acceptable to CP, and certify such action in writing.
- To the extent permitted by law (including the Fair Trading Act 1986), the specific conditions and warranties contained in this agreement are the only conditions or warranties in relation to this Agreement and replace all conditions and warranties that might otherwise be implied.
- With respect to the subject matter hereof, the Agreement and Order Form(s) shall be the complete and exclusive statement of the agreement between CP and Customer. Any changes in this Agreement must be accepted in writing by CP before those changes become effective. Any purchase order or similar documentation issued by Customer shall not be part of this Agreement and shall be only for the internal administrative convenience of Customer. The Order Form, and any addenda attached thereto, executed by Customer shall be subject to this Agreement.
- This Agreement shall be governed by and construed in accordance with the laws of New Zealand, notwithstanding any conflict of law provisions.
- (i) The Customer warrants that no bona fide dispute exists in respect of the Debt and the Customer will indemnify the seller against any claims arising from any action taken by it or on the Customer’s behalf. (ii) The Customer further warrants that all information provided to the seller regarding the Debtor has been collected in accordance with the principles contained in the Privacy Act 1993 and that the Debtor has authorized the use or disclosure of that information in anyway deemed necessary by the Seller for the purpose of collecting the Debt from the Debtor or for the purpose of credit referencing. (iii) The Customer further warrants that it obtains the prior consent of any individual, company or other entity prior to requesting the Seller to complete a credit check on that individual, company or other entity. (iv) The Customer authorizes the Seller to the extent permitted by law to collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness, to notify other credit providers of a default by the Customer, or marketing any Goods and Services provided by the seller to any other party. (v) The Customer authorizes the Seller to disclose any information obtained to any person for the purposes set out in clause iv. (vi) Where the Customer is a natural person the authorities under (clause iv & v) are authorities or consents for the purposes of the Privacy Act 1993.
- (i) If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all the Seller’s legal costs and disbursements for collection or attempted collection of the defaulted amount calculated on a solicitor and own Customer basis.